Maryland Child Custody Laws

Learn about Maryland child custody laws, how courts determine custody, and more. 

Maryland Child Custody

Child custody can be a complicated process that can take months or even years to resolve. If you’re facing a custody battle in Maryland, here’s important information you should know.

Types of Child Custody in Maryland

Maryland child custody laws recognize several types of custody in the state.

Emergency Custody

If there is an imminent risk of substantial and immediate harm to a minor child, consider a request for emergency relief. The specific procedure to request emergency custody can vary from Circuit Court to Circuit Court, but the emergency custody hearing usually takes place quickly after filing the request.

Emergency custody is a temporary order, and you will need to continue with your case until there is a final order providing permanent relief.

An emergency custody hearing is only granted in extreme circumstances such as:

  • The child has been abused by a parent, their significant other, or someone else in the home
  • The former partner has been convicted of child molestation
  • The child is at risk of neglect or abandonment
  • The other parent is making plans to take the child out of state without permission
  • The home where your child resides is without utilities, is in foreclosure or eviction proceedings, or has been damaged by a natural disaster
  • The former partner has a substance abuse problem that threatens the child

Temporary Custody

Temporary custody is also called pendente lite, meaning “pending the litigation.” This is not emergency custody and is put in place only while a divorce is pending. Temporary custody will be based on the “best interests of the child” standard and is not an “initial” award of custody.

Joint Custody

Joint Custody has three parts:

This type of child custody is where parents work together and share the care and control of the child, even if the child has only one primary residence. Each parent has an equal voice in making decisions. In some cases, one parent may have “tie-breaking” authority (the final word in cases of disagreement), or each parent may have specific areas of decision-making authority.

Shared Physical Custody is when the child has two residences, spending at least 35% of the time with each parent. Physical custody involves spending time with the child and making decisions about the child’s everyday needs. Physical custody can sometimes be referred to as “parenting time.” The court may order legal custody in several ways.

Combination. Each case is treated uniquely, so it’s possible to cobble together legal and physical custody elements that always work in the child’s best interests.

Sole Custody

A person may be granted sole legal custody, sole physical custody, or both. Judges prefer both parents involved routinely in a child’s life, so sole custody is unusually only awarded when one parent is unfit or presents a danger to a child.

Split Custody (2 or more children)

Split custody means that one parent has sole custody of one or more children, and the other has sole custody of the remaining children. Some factors that may point to this arrangement are the children’s ages and wishes. However, courts typically do not favor split custody.

Read More: How to File for Divorce in Maryland
Child Custody Basics

Determining Child Custody in Maryland

Before a custody case can be heard in Maryland, jurisdiction must be established. The court must have personal jurisdiction and subject matter jurisdiction to hear a case. Personal jurisdiction is the power to require a person to appear in court, Subject matter jurisdiction means to hear custody and visitation cases in Maryland Circuit Courts.

A case can be filed in Maryland if jurisdiction can be established by one of the following:

  • The child lives in the state
  • Maryland is the home state of the child (lives and goes to school in the state)
  • The parent has sufficient contact with the state (works, votes, lives, pays taxes in Maryland)

Even though the child is not in Maryland now:

  • Maryland was the child’s home state within the last six months
  • The parent filing for custody continues to live in Maryland
  • The child and at least one of the parents have a significant connection with Maryland (live, work, go to school here)
  • In Maryland, there are more records and witnesses to give evidence of the child’s present or future care, protection, training, and personal relationships.
  • The child is physically present in Maryland and was abandoned, or emergency protection is necessary (i.e., the child was threatened or a victim of abuse or neglect).

The court can order parents to go to mediation in any custody action. This is true whether a case is just starting during a modification of an existing order or when a parent files a contempt action.

If the court orders mediation at the initial proceeding, it will likely prolong the legal process by stopping all other actions until the mediation is complete. The court also has the power to order one or both parties to pay for the mediation.

In almost every case, reaching a custody agreement will be better than any decision the court may reach at trial. That is because parents know the details of their lives and schedule better than the judge, and child custody trials are emotionally and financially expensive.

If parents reach a custody agreement, an experienced family law attorney can help put the agreement into a court order to be signed by the judge, and your case will be closed.

When parents can’t agree, the court will hold a trial and make a custody ruling based on evidence, witness testimony, and statutory factors.

What are the laws for unmarried parents?

The child’s custodial rights lie with the mother if the parents are unmarried. If the father wants to claim rights to the child, paternity must be established in court. A father can establish paternity by:

  • A court determination of paternity, including through DNA testing
  • Acknowledging paternity in writing by signing an Affidavit of Parentage
  • Telling others that the child is his
  • Or by marrying the mother and then acknowledging himself as the father, either in writing or orally

What happens when parents have been convicted of violent domestic crimes?

Maryland courts will generally not award custody or unsupervised visitation to parents who have committed repeated domestic violence or been found guilty of first or second-degree murder of the other parent, another child of the parent, or any family member residing in the household of either parent.

What happens if the non-custodial parent refuses to return the child to the parent with custody?

If a child is under 16 years of age, it is unlawful to keep that child for more than 48 hours within the state of Maryland, or remove the child from the state of Maryland for more than 48 hours, after the lawful custodian has demanded the child’s return. If this happens, contact law enforcement to seek a resolution.

Read More: The 6 Psychological and Emotional Stages of Divorce

Can an attorney be appointed to represent my child?

Yes, this is common in high conflict divorces. To ensure the child’s rights are fully represented, the court may appoint a Guardian ad Litem or court evaluator. The official has the power to investigate parents, interview witnesses, and gather evidence. The court will use this information to make custody and visitation decisions.

The Best Interests of the Child Standard

In all Maryland child custody cases, the primary deciding factor in all issues rests on the “best interests of the child” standard.

Judges use several factors to determine what this best standard is. Those child’s welfare factors include:

  • Primary Care Giver – Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges daycare?
  • Fitness – What are the psychological and physical capacities of the parties seeking custody?
  • Abuse – The court may consider evidence of abuse by a party against the other parent, the party’s spouse, or any child residing living the party’s household.
  • Agreements – Is there a custody agreement already in place?
  • Ability to Maintain Family Relationships – Who will be best able to help the child keep family relationships?
  • Child Preference – The child’s maturity and whether the child can tell the truth from fiction will decide whether a child may be heard.
  • Material Opportunity – Which parent has the financial resources to give the child more things?
  • The child’s age, health, and gender
  • Residences of Parents and Opportunity for Visitation – How close do the parents live to each other? How close do they live to members of the child’s extended family?
  • Length of Separation – How long has the parent been separated from the child?
  • Any Prior Abandonment or Surrender of Custody – Is there a history of one parent walking out and leaving the other parent to cope with the child and the home?
  • Religious Views – These will be important in the court’s decision only if you can show that religious views affect the physical or emotional well-being of the child.
  • Disability – A party’s disability is only relevant to a custody decision if the disability affects the best interest of the child.
  • Other factors the court determines are material to the outcome of the decision

The best interests of the child standard also serves as the framework for parenting plans.

Read More: Divorce Laws in Maryland

What is a Maryland Child Custody Parenting Plan?

Parenting plans are detailed instructions that cover how custody will be enacted between parents. Some of the critical issues a parenting plan addresses are:

  • Who has legal custody?
  • Which holiday does the child spend with you?
  • What time and where may the other parent pick the child up?
  • What time should the child be returned home?
  • What is the procedure to follow if either of you is running late and won’t be there on time?
  • How much notice should you be given if they are planning a vacation?
  • How far away may the other spouse move?

In most cases, parents will have some combination of shared physical and joint legal custody. Courts hope parents will develop a plan independently but will step in if no agreement is reached. A judge will use several factors to draft a binding parenting plan, including:

  • Each parent’s willingness to share custody
  • Fitness of parents
  • Child’s relationships with each parent
  • Child’s preference
  • Ability to stabilize child’s school and social life
  • Closeness to parent’s homes (primarily a factor during the school year)
  • Employment considerations (e.g., long hours, extensive travel, etc.)
  • Age and number of children
  • Financial status

Judges will scrutinize the parties’ sincerity and whether granting joint custody will affect state or federal assistance programs. Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody.

How Do I Modify a Maryland Custody or Visitation Order?

Either parent can file a Complaint to Modify Custody with the court at any time. The complaint must show a material change in circumstances and that the modification is in the child’s best interest.

A material change can be a job change, a possible distant move, chronic health issues, marriage, or other similar life events.

The requesting parent’s responsibility is to show the court why a custody order should be changed.

Also, in Maryland, a child age 16 years or older can seek a change in custody on their own.

Maryland Child Custody FAQs

What happens when a parent violates a custody order?

When a custody order is violated, the law requires the custodial parent or lawful custodian first to demand the child’s return.

For children under 16 years old, if the abducting parent remained within the state, it can be a misdemeanor. The person can be fined $25 or imprisoned for up to 30 days.

If the abducting parent crosses the state line, it can be a felony. The person can be fined $250 -$1000 and imprisoned for 30 days to 1 year.

If the other parent has stolen the child, immediately report this to your local police department. The FBI can also be called in to find the fugitive parent and the child.

The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment), requiring the non-custodial parent to save them. The non-custodial parent must be ready to prove this clear and present danger, and they are required by Maryland law to file a petition within 96 hours.

Can a custodial parent move to another part of Maryland or out of state?

When parents have entered into a child custody schedule on their own or as part of a court order, a parent who wants to move has to file a motion seeking the court’s permission.

Moving can be complicated because relocation often creates a disruption in visitation schedules, and as a result, the other parent often objects.

Courts must weigh various factors, but ultimately the decision to grant the move is based on what is best for the child. Part of this includes ensuring ample visitation with the other parent, as well as other things such as:

  • Is the child relocating to a safe and healthy environment?
  • Will the child still be able to enjoy relationships with extended family on both sides?
  • What is the parent’s primary reason for the move? A better job? Marriage? Or simply trying to get away from the other parent?

Maryland courts want to minimize possible disruption in the child’s life, so they will weigh the decision carefully before granting or not granting permission.

If both parents share custody, does anyone pay child support?

It depends. Child support is determined by a mathematical calculation set forth by statute as part of the Maryland Child Support Guidelines. It is treated as a separate matter, and any amount paid from one parent to the other for child support may include factors such as:

  • Who has the physical custody of the child(ren)
  • If physical custody is shared, the number of overnights each parent has
  • The gross income of the parties
  • Alimony paid or received in this case
  • Alimony paid in a separate case
  • Child support paid in a separate case
  • Cost of the child’s health insurance, daycare, and burdensome medical costs
  • Other factors that will have a material impact

Does the court consider what a child wants in custody issues?

Children 16 years or older may petition a Maryland court for a change in custody. The child can file a motion to change custody without a guardian, but the child must demonstrate that a modification is in their best interest. When children are younger than 16, courts may consider their wishes, but the court has the final say on where a child will live.

Courts favor stability for children, so the judge won’t change an existing custody or visitation order unless the requesting parent can demonstrate that it’s in the child’s best interest.

Does Maryland favor mothers over fathers in custody cases?

The law is clear in Maryland that there is no preference in child custody cases based on the parent’s gender. Mothers and fathers are granted equal status and protection.

Do grandparents have visitation rights in Maryland?

Generally, the natural parents will have a presumptive right to custody. Third parties can be granted custody only in cases where the parents are deemed unfit or in exceptional circumstances. In these situations, grandparents may petition the court for visitation rights.

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